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Post-Approval Battle Lines Form Over Trans Mountain

Mark Klotz/Flickr
Mark Klotz/Flickr

Houston-based Kinder Morgan may have received a federal government permit to triple the capacity of the 53-year-old Canadian pipeline it bought in 2005, but actual construction remains in doubt as the battle lines form for and against the Trans Mountain expansion plan.

For a while last week, it appeared the term might be more than metaphorical, when federal Natural Resources Minister and GreenPAC endorsee James Carr seemed to threaten to use military force to push the American-owned pipeline through against domestic opposition.

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“Carr suggested Canada is prepared to deploy the military against anti-pipeline actions deemed ‘not to be peaceful,’” Indigenous-focused APTN News reported, “raising the possibility the country could face a scenario last seen during the Oka Crisis in 1990.”

What Carr actually told an Alberta business audience, according to several reports, was that, “If people choose for their own reasons not to be peaceful, then the government of Canada, through its defence forces, through its police forces, will ensure that people will be kept safe. We have a history of peaceful dialogue and dissent in Canada. If people determine that that’s not the path they want to follow, then we live under the rule of law.”

His remarks reportedly received applause in the room, but they were met by outrage on social media and opposition benches of Parliament. Quebec NDP MP Pierre-Luc Dusseault, called Carr’s statement “irresponsible and even dangerous,” asking, “how can the government defend the minister and those comments?” His colleague Randall Garrison condemned the “incendiary language” and reminded the minister that “in this country the federal government has no authority to use our military against pipeline protests.”

Carr walked back the inflammatory comment later in an interview with CBC Radio, assuring listeners that there was “no warning intended” by his choice of words. However, environmental activists are already lining up to resist the pipeline.

“What if we gave Canada 20 Standing Rocks?” asked Mohawk Grand Chief Serge Simon, a staunch opponent of an alternative route for diluted Alberta bitumen through Quebec to Saint John, NB., according to the web-based North American Energy News.

Kai Nagata, a Vancouver-based environmental campaigner with the Dogwood Initiative, told the same outlet that “no matter what, we’re going to see the threats of escalating civil disobedience. You’re going to see calls for physical resistance to the expansion. And this being the 21st century, I think we’re going to see these kinds of messages travel very quickly thanks to social media.”

Those calls may be all the stronger in light of legal assessments that attempts to stop the pipeline expansion in court are likely to prove futile. The project faces no fewer than seven challenges before the Federal Court of Canada, four of them by First Nations arguing violations of their Constitutional rights.

However, three experts in aboriginal law told the Vancouver Sun those cases would be unlikely to prevent Kinder Morgan from commencing construction on its line as it plans to sometime next year.

“It could slow things down—that’s the extent of it,” University of B.C. law professor Gordon Christie told the Sun. “The kinds of arguments [First Nations] are making, they don’t have, at this point, what counts as a veto,”

According to Robin Junger, co-lead with McMillian LLP’s Aboriginal practice in Vancouver, “the law is that [Kinder Morgan’s crews] are entitled to move forward despite the court cases being filed. For anyone to change that, they would have to make a special application for an injunction against the decision. And that’s a high threshold to meet.”

University of Saskatchewan law professor Dwight Newman agreed the prospects of Indigenous or environmental groups securing such an injunction were low, adding that even if the courts found that Ottawa had failed to consult adequately with First Nations, “the most likely remedy would be for that consultation to take place.” On the other hand, the Sun added, “that consultation could lead to accommodation that gradually made the project ‘undoable’”.